Codefendant Ophthalmologist Testifies Against OMIC Insured at Trial
by Ryan Busci, OMIC Senior Claims Associate
Digest, Winter 2005
ALLEGATION Negligent cataract surgery and displaced intraocular lens, resulting in endophthalmitis and enucleation.
DISPOSTION Defense verdict for OMIC insured. Codefendant settled with an indemnity payment.
Case Summary
An OMIC insured ophthalmologist performed a cataract procedure on a 73-year-old male patient. During the procedure, there was a posterior capsule rupture with some corneal edema. The insured performed a Weck cell vitrectomy, an “open sky” procedure that uses a cellulose sponge to hold the vitreous as it is cut with scissors. The following day, he noted that the patient still had blood in the eye and visual acuity of hand motion. Seven days postoperatively, the insured concluded that there was still blood in the eye but no sign of infection. Visual acuity had improved to count fingers.
Approximately two weeks later, another ophthalmologist saw the patient in the emergency room. This ophthalmologist diagnosed a dislocated intraocular lens. He admitted the patient to the hospital and removed the intraocular lens; no antibiotics were administered during this procedure. He discharged the patient on the second postoperative day despite examination evidence of increased inflammation, which was left untreated.
One day after discharge, the patient presented to this ophthalmologist’s office with additional signs and symptoms consistent with an infection. The ophthalmologist administered topical antibiotics but took a “wait and see” approach and had the patient return in 24 hours. When the patient returned the following day, he was diagnosed with endophthalmitis.
The patient underwent a vitreous tap and injection of antibiotics by a third ophthalmologist but ended up with no light perception in the operated eye. Eventually, the patient required an enucleation and later developed orbital cellulitis, which required removal of the implant.
Analysis
Taking a case to trial, much like performing a surgical procedure, has its risks and potential for complications. In this case, OMIC had what it believed to be a unified defense for its insured going into trial but recognized the difficulties facing the codefendant ophthalmologist’s case.
During the first day of trial, the codefendant ophthalmologist settled with the plaintiff. He then testified that the insured’s Weck cell vitrectomy had created areas and grooves, which had allowed bacteria to land and grow, thus providing a tissue environment for the subsequent infection. This was new information that the codefendant had not offered in his deposition. Had OMIC and defense counsel known that the codefendant was going to be critical of the insured’s care, this may very well have changed the pre-trial evaluation of the defensibility of this case.
However, upon cross examination, OMIC counsel was able to get the codefendant to admit that it was not below the standard of care for the insured to have had the complication of the broken capsule or to have used the Weck cell for the vitrectomy in the initial cataract surgery. In fact, there were absolutely no signs of infection during the insured’s treatment of the patient and no signs of infection detected until after the codefendant’s removal of the intraocular lens.
The plaintiff and codefendant could not dispute these medical facts or OMIC’s strong expert witness support for the insured. The jury agreed and rendered a defense verdict on behalf of the OMIC insured.
Risk Management Principles
Statements criticizing the care of another treating physician are often the root cause of malpractice claims and lawsuits. It is imperative to exercise great caution when commenting on another physician’s care in front of a patient. Concerns about the care of a treating physician are more appropriately discussed with the physician, not with the patient.
Going into trial with a unified defense is extremely helpful to the overall defense of a case. Finger pointing among defendants is usually not well received by a jury. When codefendants criticize one another, they are essentially testifying for the plaintiff. Shifting blame or criticizing someone else does not guarantee that you will not also be named in the lawsuit nor will it necessarily help you at trial.
A Medical Board Investigation Handled Perfectly
By Ryan Bucsi, OMIC Senior Litigation Analyst
Digest, Winter 2007
ALLEGATION: Complaint to state medical board of loss of vision following laser treatment for diabetic macular edema.
DISPOSITION: Medical board did not pursue investigation following defense attorney’s letter of response.
Case Summary
A patient presented to an OMIC insured’s office with a visual acuity of 20/40 in the right eye and 20/60 in the left eye. The physical examination revealed clinically significant diabetic macular edema in both eyes with foveal lipid in the left eye. The ophthalmologist subsequently performed laser treatment on each eye on separate dates. At the follow-up examination, the patient did not exhibit any change in visual acuity or complain of any loss of vision. The diabetic macular edema resolved in the right eye but persisted in the left eye, so the surgeon performed another laser procedure.
The insured’s associate evaluated the patient at her follow-up visit two months later. Although the patient had never called to report any visual acuity loss, she now said that she had not been able to see well since the second procedure. Her visual acuity was 20/400 in the right eye and count fingers in the left eye. She was diagnosed with severe diabetic macular edema in both eyes with possible macular ischemia. The associate recommended a repeat fluorescein angiography to assess the perfusion status of the maculae and to evaluate the vascular status of the retina in each eye.
The patient chose not to return to the insured. The insured then advised her in writing that the advanced state of her condition required that she either come in for a follow-up appointment or see another ophthalmologist; he warned that lack of care could further jeopardize her vision. The patient reportedly sought care with another ophthalmologist as advised.
Analysis
The patient filed a complaint with the state medical board alleging that her compromised vision in both eyes was a result of the second laser treatment. The insured and his attorney worked together to craft a response to the medical board complaint and an expert witness was retained to evaluate the care. The physician’s letter to the medical board started out by admitting that the laser treatment did indeed cause destruction of the macular retinal tissue responsible for central visual acuity but that it could do so only in the treated eye. Notably, the patient had complained of delayed bilateral visual loss, for which another cause needed to be found.
The retained expert supported the physician’s care, opining that the procedures were indicated and appropriate for the patient’s macular condition and that there was no objective or significant change in her visual acuity immediately following either of the treatments. The expert felt that the most likely cause of the patient’s vision loss was her underlying diabetic retinopathy, which had progressed rapidly due to other factors such as duration of her diabetic condition, degree of blood sugar control, underlying vascular disease, compromised renal function, and anemia. This worsening of the patient’s diabetic retinopathy may have led to macular ischemia and progressive leakage of fluid and lipid from incompetent diabetic macular blood vessels.
Risk Management Principles
This case exemplifies how a medical board investigation should be handled. Even though the ophthalmologist was confident that he had met the standard of care, he immediately reported the matter to OMIC’s claims department. The OMIC litigation specialist for the insured’s state promptly referred the case to an attorney, who in turn retained an expert. Within one month of the date of the medical board letter of investigation, the OMIC attorney had worked with the insured to draft a response. Furthermore, the expert signed an affidavit supporting the physician’s care; this affidavit was attached to the letter of response. The medical board decided not to pursue the matter and concluded its investigation. The insured’s willingness to cooperate and work with the OMIC-appointed attorney to craft an effective response was a key factor in averting a potentially costly and time-consuming medical board investigation.
Complicated Course of Chronic Iritis
By Randy Morris, JD OMIC Claims Associate
Digest, Fall 2001
ALLEGATION Failure to timely treat chronic iritis and scleritis.
DISPOSTION Defense verdict on behalf of OMIC insured.
Case Summary
A 50-year old male patient was seen by the insured on a referral from an optometrist for evaluation and treatment of iritis in the right eye. The patient’s history included a prior episode of iritis with a finding of synechia. Examination showed the presence of a cataract, which the insured suspected was caused by chronic iritis. She prescribed Predforte and Mydriacyl. The patient returned for numerous visits with the insured, while at the same time being treated by a primary care physician and an optometrist. On two occasions, when the primary care physician diagnosed conjunctivitis, the insured injected Celestone and the patient seemed to respond favorably.
During a subsequent visit, the insured diagnosed iris bombe related iritis. On two separate occasions, the insured used a YAG laser on an emergent basis to make a hole in the iris and bring down the intraocular pressure. In both instances, the hold closed off within a matter of weeks and prompted the insured to a perform a sector iridectomy. The iridectomy failed within one month. Although the cataract was potentially contributing to the iris bombe, the insured chose not to perform cataract surgery because of ongoing medical issues with the eye.
The insured referred the patient to an iritis specialist for a second opinion. The specialist’s impression was chronic iritis and scleritis, and he ordered a battery of tests to determine whether various diseases might be causing the chronic iritis. Tests for syphilis, tuberculosis, and rheumatoid arthritis were negative, but the patient continued to have problems with the eye. Throughout the course of treatment, the patient was seen by numerous specialists and prescribed various medications, including oral Prednisone. Despite these efforts to diagnose and treat the cause of the iritis, the patient eventually lost all vision in the right eye.
Analysis
The insured, the primary care physician, and a medical group were all named defendants in the patient’s lawsuit. Plaintiff’s expert criticized the insured for not treating the chronic iritis more aggressively, but he was forced to concede that he could not say to a reasonable medical probability that more aggressive therapy would have prevented that patient’s loss of vision. The defense expert felt strongly that the insured had complied with the standard of care at all times and that the patient appeared to have lost vision in the eye despite the best efforts of all the physicians involved. Specifically, the defense expert supported the insured’s decision to get a second opinion when the patient did not respond to treatment with topical steroids.
Risk Management Principles
This case illustrates how an unfortunate result can lead to a lawsuit, even when the best of case is provided. The patient presented with a complicated chronic condition that failed to respond to a multidisciplinary course of treatment. Fortunately, skilled defense counsel and a very effective expert witness convinced the jury that there was no negligence on the part of the OMIC insured in her care of the patient. The insured’s referral to the iritis specialist was a major factor in her defense and underscores the value of a prompt referral when a patient is not responding to treatment. In post-trial interviews, several jurors said they did not like the plaintiff expert’s criticism of the insured ophthalmologist; conversely, they were impressed with OMIC’s defense expert. The codefendants didn’t fare as well, however, and were hit with a plaintiff verdict. In an interesting twist, they appealed the verdict and were granted a judgment in their favor.
Documentation Errors Related to Electronic Health Records
Ryan Bucsi Senior Litigation Analyst
Allegation
No allegations were made as these scenarios did not result in claims.
Disposition
Practice revised its EHR policy to prevent a recurrence of these errors.
Case Summary 1
A technician copied a patient’s medication list from the paper chart to the electronic health record (EHR). Unfortunately, the technician referenced the wrong chart so the entire list of medications was incorrect. When the error was discovered, the healthy young patient became upset that another patient’s medication list had been entered into his medical record. Despite receiving a phone call and letter of apology from the administrator, the patient lost confidence in the practice and changed providers.
The group then revised its policy on medication entries to require a clinical manager to oversee and sign off on all electronic exam entries by technicians. Any errors subsequently found during audits are brought to the attention of the clinical manager and the technician at fault.
Case Summary 2
The patient’s ophthalmologist was out of the office when a prescription refill request came in. An administrative assistant at the group sent the refill request to a mail order pharmacy without first getting physician approval. Unfortunately, the prescription dosage had been entered into the EHR incorrectly so the refill request was for 0.25% Timolol instead of 0.5% Timolol as the ophthalmologist had prescribed.
When the patient received the refill, she noticed the medication bottle had a blue cap instead of the yellow cap she was used to. She called the ophthalmologist to find out why the cap color had changed, which brought the medication error to the group’s attention.
No harm was done to the patient and she was reimbursed for the cost of the medication. The administrative assistant, a longtime employee of the practice, was given a written warning for breach of the group’s policy, which required physician sign off on all refill requests.
Case Summary 3
An ophthalmologist ordered Durezol for a patient’s iritis and entered the medication into the free text area of the EHR instead of using the medication module. The scribe then sent a prescription request for Dorzolamide to the pharmacy. At a scheduled follow-up visit two days later, the technician also failed to add the prescription to the electronic medication module and copied the ophthalmologist’s order from the previous visit again into the free text area of the chart for the patient’s medications.
Three days after the follow-up appointment, the patient went to the emergency room complaining of increasing pain. The iritis had indeed worsened, and it was in the emergency room that the medication error was finally discovered. The patient chose not to return to the group practice after learning of the error.
A warning was issued to the ophthalmologist, scribe, and technician. The ophthalmologist was credentialed with a hospital system that required use of a different electronic prescribing system from the group’s EHR. To the ophthalmologist, entering the medication in the group’s EHR as well as the hospital’s system seemed to be an unnecessary duplication of effort. Had she done so, however, the discrepancy most likely would have been caught and the patient would not have ended up in the emergency room.
Risk Management Principles
Electronic health records promise faster and more consistent data entry with the goal of improving patient care and safety. Redundancies are built into the system to provide opportunities to double check entries and catch discrepancies before costly mistakes are made. Still, errors do occur and inaccuracies in EHR documentation can have negative consequences for the physician-patient relationship. None of the scenarios discussed here resulted in a professional liability claim or significant harm to the patient, yet two patients chose not to return to the practice and terminated their care with the ophthalmologist.
The use of electronic health records over paper records can be a double-edged sword when claims do arise. They can either be used by the defense to support the physician’s care or by the plaintiff to show a clear and undisputable record of an error.
Delayed Consultation Referral of Managed Care Patient with Endogenous Endophthalmitis
Digest, Spring, 1996
ALLEGATION Failure to respond in a timely manner to a referral request, resulting in delayed diagnosis and treatment of endogenous endophthalmitis.
DISPOSITION Case settled on behalf of all codefendants.
Case Summary
The patient, a 75-year-old male with a medical history of recurrent urinary tract infections, had been receiving ophthalmic care from the insured for several years. On May 4, the patient called the insured’s office complaining of discomfort, blurred vision, and floaters OS. An appointment was scheduled for May 6; in the meantime, however, the patient was admitted to the hospital by his primary care physician for inpatient treatment of bacteremia and urosepsis after a blood culture revealed the presence of E. Coli. Family members called to cancel the appointment with the ophthalmologist.
During the hospital admission, the patient continued to complain of pain, redness, and blurred vision in the left eye, prompting the primary care physician (a non-ophthalmologist) to leave orders with the hospital nursing staff to request an ophthalmology consult from the insured. Unfortunately, when the hospital nurse called the insured’s office on May 7, she was told that the ophthalmologist would be out of town until May 10 and that the ophthalmologist on call during his absence was not a participating physician of the patient’s managed care plan. This fact was documented in the hospital chart. The primary care physician gave no additional orders for another ophthalmologist to be contacted until May 10 when family members complained to the nursing staff that the patient still had not been evaluated by an ophthalmologist. After examining the patient, the primary care physician documented his impression as “conjunctivitis, rule out other causes.” He ordered Tobradex eye drops every three hours and an eye patch. He also left orders for the nursing staff to again contact the insured’s office for a consultation, which they did.
The following afternoon, the primary care physician saw the patient again and, concerned about the persistent nature of the swelling and redness of the left eye, ordered a culture and sensitivity of drainage from the patient’s eye. Although he was aware the patient still had not been seen by the ophthalmologist, he took no other action regarding the consultation request until May 12 when he left orders for the nursing staff to again contact the insured and request that he see the patient that day. A nurse called the insured’s office for the third time on May 12 and communicated that the patient was to be seen for conjunctivitis. Based on this diagnosis, the insured believed an emergency examination was unnecessary. He told the nurse he would be in to see the patient the next day.
Due to a lack of ophthalmic equipment at the hospital, the insured had the patient brought to his office for an examination on May 13. He noted a red painful eye with an IOP of 53 and visual acuity of light perception. An ultrasound revealed endophthalmitis. The insured then personally called a retinal specialist to make an emergency referral. The retinal specialist diagnosed endogenous endophthalmitis secondary to E. Coli sepsis. The patient underwent a vitrectomy and IV antibiotics regime. Unfortunately, he went on to develop a retinal detachment and never recovered vision in his left eye.
Analysis
Failure to communicate to the ophthalmologist the urgency of the referral delayed the diagnosis and treatment of this patient. The prognosis for this condition is poor even when an early diagnosis is made; however, in the minds of jurors, causation arguments often pale in comparison to a plaintiff’s allegations of careless communication and neglect. In this era of managed care, the public frequently perceives medical care as an impersonal, numbers-oriented proposition, and that perception can engender great sympathy for a plaintiff who appears to have “fallen through the cracks.”
That family members went to hospital staff on several occasions to voice their concern about the patient’s vision problems and their dissatifaction that the patient had not been seen by an ophthalmologist led medical experts, defense attorneys, and claims professionals who evaluated this case to agree that the plaintiff could successfully portray himself and his family as pleading for treatment that came too late. It also became clear during depositions that despite their best efforts to avoid finger pointing, the codefendants each blamed the other for the miscommunication and delays. Both situations can be disastrous during a trial.
After assessing the defensibility problems involved in this case, the parties pursued mediation, a form of alternative dispute resolution that resolved the case earlier and at lower cost that would have been likely had this been tried
Risk Management Principles and Commentary
In a managed care environment, referral issues can become a major area of risk exposure. If the on call physician covering for the insured had been a provider under the patient’s plan, the consultation process probably would have proceeded without delay. One of the reasons the primary care physician said he decided to wait for the insured to return was because he was familiar with the insured and not with the other ophthalmologists in the plan. Establishing reciprocal on call relationships with other ophthalmologists who participate in the same managed care plans may help avoid scenarios like this one.
Some of the miscommunication in this case also could have been avoided had the insured ophthalmologist insisted on more information concerning the patient’s condition and the urgency of the referral. At no point in this case did the referring physician and the consultant ophthalmologist communicate directly; instead they relied on a hospital nurse to relay messages. More direct communication between the physicians in this case would have clarified how concerned the primary care physician actually was about the patient’s eye and probably would have resulted in the patient being seen earlier by the ophthalmologist.
